Law No. 22 of 1999 on Regional Autonomy stipulates that the Indonesian national government acknowledges the Special Region status of the Province of Aceh and grants the provincial government of Aceh the right to include precepts of ‘syariat’ (or Islam) in its local regulations. The Law also grants the Ulama (Islamic religious leaders) a role in the implementation of Islamic provincial regulations.
The Acehnese government then established the Islamic Sharia Office and began to introduce Qanun, an Arabic term for Islamic local regulations.
Qanun No. 14 of 2003 on Khalwat (Close Proximity) is a provincial regulation that prohibits any activity or situation that can lead to zina (sexual conduct outside of marriage) (Chapter 2, Art. 2). The objective of this is to provide the Acehnese people with guidance to live according to Islamic teachings and Aceh’s cultural values, as well as to protect the Acehnese people from conducting themselves in a dishonourable manner. The Qanun calls for all elements of society to protect people from conducting any activity that could lead to zina and to help prevent societal moral decay.
This Qanun is considered controversial in two regards. Firstly, the way in which the Qanun defines khalwat, and second, that it adopts caning as a form of punishment. The Qanun does not specify what constitutes khalwat; Article 2 only states that khalwat is ‘any activity, act, and situation that will lead to zina’. Moreover, Article 4 states that khalwat is haram or prohibited by Islam, while Article 5 says ‘all persons are prohibited from committing khalwat’. (The implication here is that non-Muslims are not exempt from the Qanun’s application.)
The lack of explanation on what constitutes khalwat has led to differing interpretations. The sharia police (Wilayatul Hisbah), for example, define khalwat as any activity that involves two people of differing sex being in close proximity to one another. This has seen the sharia police conducting arrests of men and women riding motorbikes together, sitting inside cars together, as well as even just being in the same room together in the absence of other people.
The other controversial issue stemming from this Qanun is that it sanctions a maximum of nine blows of the cane, or a monetary penalty as an alternative punishment, for those deemed to be in breach. Offenders can also be imprisoned for a maximum of six months. The adoption of caning, as well as the alternative option of a monetary penalty, has led to discriminatory practices insofar as those who cannot afford to pay the penalty have no option but to be caned.
The Qanun regulates the practice of caning in detail. It is carried out by an attendant assigned by the General Prosecutor after the case is concluded. Caning is to be conducted in a public forum, in the presence of the General Prosecutor and a medical team. The rattan cane used must be 1 metre in length and have a diameter of between 0.7-1 centimetre. The blows may be directed to any part of the body except the head, face, neck, chest, and genitals area. Men must stand while being caned, while women must kneel. Both must wear Muslim dress.
The lack of clarity on what is meant by khalwat and the form of punishment used in Qanun Khalwat have sparked debate throughout Indonesia. Human rights activists have voiced their concerns over the introduction of this Qanun and the imposition of caning as a violation against human rights and in contravention of the 1945 Constitution of the Republic of Indonesia.
In the hierarchy of laws within the Indonesian legal system, including the 1945 Constitution, Laws (Undang-undang), Government Regulations (Peraturan Pemerintah), Presidential Regulations (Peraturan Presiden) and Regional Regulations (Peraturan Daerah), Acehnese Qanun enjoy the same status as Regional Regulations.
The 1945 Constitution guarantees the rights of every Indonesian citizen. Therefore, the provisions of the Qanun that permit caning directly impinge upon the rights of the Acehnese people, as enshrined in the 1945 Constitution. Specifically, those rights are enshrined in:
- Article 28G, Paragraph 2: ‘Every person shall have the right to be free from torture or inhuman and degrading treatment and shall have the right to obtain political asylum from another country’.
- Article 28I, Paragraph 1: ‘The right to life, freedom from torture, freedom of thought and conscience …’
The discriminatory practices resulting from the implementation of the Qanun also contravene:
- Article 28I, Paragraph 2: ‘Every person shall have the right to be free from discriminative treatment based upon any grounds whatsoever and shall have the right to protection from such discriminative treatment’.
- Article 28D, Paragraph 1: ‘Every person shall have the right of recognition, guarantees, protection, and certainty before a just law and of equal treatment before the law’.
Since its introduction, the social impact of this Qanun has become readily apparent, with many Acehnese men and women having been caned and humiliated in public.